IMM-4524-96
B E T W E E N:
KANAGALINGAM RAMALINGAM
JEYAKUMARY KANAGALINGAM
SINDUJAY KANAGALINGAM
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
MACKAY, J.:
These are brief reasons for an Order issued on September 5, 1997, whereby I allowed the applicants' application for judicial review and set aside the decision of the Convention Refugee Determination Division, dated November 4, 1996, which held that the applicants are not Convention refugees. The application came on for hearing in Toronto on September 3; decision was then reserved and subsequently the order on September 5 issued.
The background can be described summarily. The applicants are a family, the male applicant now 40 years of age, his wife 33 years of age and their daughter 10 years of age. They are Tamils from the north of Sri Lanka, in the Jaffna region. Harassed by the L.T.T.E. and later by the Sri Lanka Army, they left the Jaffna area at the end of October, 1992 for Colombo where they arrived on November 2, 1992. En route to Colombo, when stopped at an army check point, they were given a note which the male claimant believed, (it was written in Sinhalese, which he could not read), authorized them to go and remain in Colombo for one month for purposes of getting medical attention for their daughter.
On November 5, 1992 while staying at a lodge, the male applicant was arrested and detained for 4 days during which he was interrogated, badly beaten and assaulted and put into a dark room when he did not answer questions seeking his identification of L.T.T.E militants. He was released only after a bribe of 35,000 rupees was paid to the police. On his release he was warned not to stay in Colombo but, rather, to return to Jaffna. If found again in Colombo the police warned he would be arrested and handed over to the army.
On November 19, 1992, two weeks after his arrest, the family were assisted in leaving Colombo and Sri Lanka. They travelled to Singapore, Japan, the U.S. and then to Canada where, on arrival on November 29, 1992, a month after leaving their home in Jaffna, they made claims to be Convention refugees.
In its decision the tribunal concentrated on the question of whether the applicants had an I.F.A. in Colombo. The panel erred, as the respondent concedes, in misunderstanding evidence concerning the note given to the applicants by the army at the check point en route to Colombo. The male applicant's evidence was that the note was retained by the guide who brought the family to Colombo and the applicant did not have the note after arrival there. In its decision the panel, discussing his alleged arrest, found it "puzzling that the claimant would not show the police the note he received from the Sri Lankan Army authorizing the claimants' presence in Colombo".
Further, although the male applicant testified that he was badly beaten, harassed and tortured when arrested and detained, and that he was held in a dark room, the panel's decision refers to his detention, to the fact that he was beaten and tortured. Then, in my opinion, it belittled his description by stress upon his inability to describe what he meant by "torture". When asked to describe it
| ...he stated that he was put in a dark room, but nothing else happened to him. |
| The panel finds that the male claimant's oral description of his alleged "torture" was very vague. When questioned he was only able to state that he was put in a dark room. The panel does not believe the alleged arrest and detention occurred. Even if the panel were to believe that the male claimant was arrested and placed in a dark room, the panel finds this testament to fall short of persecution. |
The underlying basis of that conclusion, as expressed by the panel, is its error in understanding the evidence about the note and its narrow description of the mistreatment of the male applicant while held in detention by concentrating on his failure to describe what he meant by torture, and thus to disbelieve he was arrested. In those circumstances it was only consistent to say that even if arrested "and put in a dark room" he was not persecuted. The panel ignores that he was badly beaten and harassed while being questioned over four days.
Its finding of a lack of persecution might be shared by others, but not on the basis of the reasoning in the panel's decision. The findings, that there was no arrest, or if he were arrested, there was no persecution, cannot stand, in my view.
For the respondent, it is urged that even if the panel erred in its assessment of the evidence and even if the male applicant were persecuted in 1992 in Colombo, the key to the panel's decision is that circumstances have so changed since 1992 that there is no objective evidence to support a fear of persecution if the applicants were now to be returned to Colombo. Thus they have an I.F.A. within Sri Lanka. I accept that another panel hearing the evidence might so find, but it is not for this Court so speculate that would be the inevitable result.
In the circumstances, where the panel first found there was not persecution of the male applicant in 1992, the Court cannot be sure that had the panel found there was past persecution it would have reached the same conclusion since there was evidence in reports of country conditions since then that arrests of Tamils in Colombo continued, if less frequently than some years ago.
In summary, in my opinion the panel here erred in its decision about basic factors underlying its assessment of mistreatment of the male applicant in Colombo in 1992, leading to a conclusion that there was not persecution in the past. That was a key to its conclusion that the applicants had an I.F.A. in Colombo. The panel's decision with respect to the male applicant, in my opinion, should be set aside, as should its decision with respect to the mother and daughter in this family whose respective claims are dependant upon that of the male applicant.
For these reasons an Order issues, allowing the application for judicial review, setting aside the decision made November 4, 1996 and referring these claims back to the C.R.D.D. for reconsideration by a different panel in accord with the law.
No questions were proposed and none are certified pursuant to s. 83(1) of the Immigration Act for consideration by the Court of Appeal.
"W. Andrew MacKay"
Judge
Toronto, Ontario
September 5, 1997
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: IMM-4524-96
| STYLE OF CAUSE: KANAGALINGAM RAMALINGAM |
JEYAKUMARY KANAGALINGAM
SINDUJAY KANAGALINGAM
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
DATE OF HEARING: SEPTEMBER 3, 1997
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER BY: MACKAY, J.
DATED: SEPTEMBER 5, 1997
APPEARANCES:
Mr. Lorne Waldman
For the Applicants
Mr. David Tyndale
For the Respondent
SOLICITORS OF RECORD:
LORNE WALDMAN
Barrister and Solicitor
281 Eglinton Avenue East
Toronto, Ontario
M4P 1L3
For the Applicants
George Thomson
Deputy Attorney General
of Canada
For the Respondent
FEDERAL COURT OF CANADA
Court No.: IMM-4524-96
Between:
KANAGALINGAM RAMALINGAM
JEYAKUMARY KANAGALINGAM
SINDUJAY KANAGALINGAM
Applicants
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER